"If a 401(k) is adopted by an agent (i.e. business manager) who wasn't authorized to do so, but employees become enrolled and make deferrals etc. and eventually the employer discovers the issue -- what is the status of the plan and what must happen to the 'plan assets'? Would any of ERISA's provisions apply or not? Could the employer delay returning the contributions to let litigation run its course or would this implicate anti-alienation restrictions? ... What if certain participants were not eligible under the terms of the plan…how would that be navigated in light of the fact that the entire plan was improperly adopted?"

"Lets say you have a real estate firm that employs a hundred 'independent brokers' who are all paid via 1099 Forms. The real estate firm itself has several W-2 employees, primarily the owners and clerical people. My question is could the real estate firm adopt a plan that excludes the independent brokers, but does cover all of the W-2 Employees and the owners who are primarily paid via K1 under an LLC? Assuming that is possible, could the real estate firm then offer to the independent brokers the ability to adopt their plan, but under terms of a multiple employer firm. To clarify, each independent broker would be considered a separate firm that chooses to adopt the plan for the employees of the 'independent broker's firm'? This would be similar to a MEP that covers several independent franchises where there is no common ownership, making this to not be a controlled group. I am guessing that problems might be due to Affiliated Service Group Rules and/or the independent broker being deemed employees of the real estate firm. I understand that the key to this topic is proving that the '1099 employee' is truly an independent contractor, including the ability to control work hours and work location; and that a Form SS-8 can be filed where the IRS determines if the person is truly independent, or if that person must be treated as a W-2 employee for issues like benefit coverage."

"We have a client who does a flat 4% Safe Harbor Match who is looking to bring in a new group of employees. For this new group they want to give them the same 4% match long-term, but for the first year they want to give them a 7% match. Is that something that we can even do, if it passes the necessary ACP testing? Or is it not even possible to do since the match is a Safe Harbor? I guess can we give only certain employees a 3% discretionary match but not everyone (assuming it passes the necessary testing)?"